Patna High Court
MUKESH KUMARversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The order of cognizance dated 16‑07‑2018 was vitiated as a malicious prosecution and is quashed.
Summary
The petitioner, Mukesh Kumar, challenged the order of cognizance dated 16‑07‑2018 taken by the Additional Chief Judicial Magistrate, Patna, under Section 498‑A IPC and Sections 3 and 4 of the Dowry Prohibition Act. The FIR was filed by his wife shortly after he filed a divorce petition, alleging dowry demand and cruelty, but the complaint contained only vague, omnibus allegations and no specific acts. The High Court examined precedents on the misuse of criminal law in matrimonial disputes and held that the FIR was a malicious counter‑blast aimed at vengeance, lacking a prima facie case. Applying the principles laid down in Bhajan Lal, Dara Lakshmi Narayana and other Supreme Court decisions, the Court found the magistrate had not applied his mind and the proceedings amounted to an abuse of process. Consequently, the order of cognizance and all consequent proceedings were quashed.
Issues considered
- Whether the FIR and order of cognizance under Section 498‑A IPC and the Dowry Prohibition Act are maintainable when the allegations are vague and stem from a matrimonial dispute.
- Whether the magistrate exercised jurisdiction properly under Section 482 CrPC in taking cognizance.
- Whether criminal law can be employed as a weapon of personal vengeance in matrimonial discord.
- Whether the specific allegations, if any, constitute an offence under the cited statutes.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 155(2), 156(1), 482
- Dowry Prohibition Act — s. 3, 4
- Indian Penal Code — s. 34, 498-A
- Information Technology Act — s. 67(A)
Subjects
- dowry harassment
- Section 498-A
- mischief in matrimonial dispute
- abuse of process
- quash order
- Section 482 CrPC
- malicious prosecution
- criminal law misuse
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.73383 of 2019
Arising Out of PS. Case No.-60 Year-2018 Thana- SHRIKRISHNAPURI District- Patna
======================================================
Mukesh Kumar, son of Sri Vinod Kumar Resident of Mohalla - Akhara Ghat,
Nazipur, P.S.- Ahiyapur, District- Muzaffarpur
... ... Petitioner
Versus
1. The State of Bihar
2. Sonal Kumari @ Sonal Singh, D/O - Shri Shailesh Kumar Singh, R/O -
House No. 04, Road No.8, West Anandpuri, Boring Canal Road, Patna, P.S.-
S.K. Puri, District- Patna
... ... Opposite Parties
======================================================
Appearance :
For the Petitioner : Mr. Rakesh Kumar Samrendra, Advocate
Mr. Harsh Vardhan, Advocate
Mr. Manager Sah, Advocate
For the State : Mr. Shailendra Kumar, APP
Mr. Jharkhandi Upadhyay, APP
For the Opp. Party No.2 : Dr. Alok Kumar Sinha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 01-05-2026
This application has been filed challenging the
order dated 16.07.2018 passed by the learned Additional Chief
Judicial Magistrate, Patna, whereby the learned Magistrate has
taken cognizance against the petitioner for the offence under
section 498-A of the Indian Penal Code and under section 3 and
4 of the Dowry Prohibition Act in connection with Shri
Krishnapuri P.S. Case No.60 of 2018.
2. The petitioner is the husband of opposite
party no.2 and, at the relevant time, he was working at Ordnance
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Factory, Katni, Madhya Pradesh, as Charge Man.
3. The present F.I.R. was instituted on the basis
of a typed complaint lodged by the informant-opposite party
no.2 i.e. the wife of the petitioner inter alia alleging that her
marriage was solemnized with the petitioner according to Hindu
rites and rituals on 10.07.2016 and at the time of marriage, the
parents of the informant gave Rs.10,00,000/-, Swift Car, gold
ornaments and other household articles to the family members
of her husband, but she was subjected to cruelty by the
petitioner and his family members for demand of dowry. It is
also alleged that on 28.04.2017, the informant gave birth to a
male child. It is next stated that the informant was doing B.D.S.
from Patna and her husband was working in the Ordnance
Factory, Government of India at Katni, Madhya Pradesh.
3.1. It is next alleged that the accused persons
used to demand Rs.8,00,000/- as dowry from the family
members of the informant and on account of non-fulfillment of
the same, they used to torture the informant. It is further alleged
by the informant that the petitioner had an extra marital
relationship with another lady with whom he was allegedly
living. Based on the aforesaid written complaint, the present
F.I.R. vide. Shri Krishnapuri P.S. Case No.60 of 2018 came to
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be registered against the petitioner and his family members.
4. Upon completion of investigation, the Police
submitted charge-sheet on 30.06.2018 against the petitioner and
other accused persons under sections 498-A read with section 34
of the Indian Penal Code and under sections 3 and 4 of the
Dowry Prohibition Act. Thereafter, the learned A.C.J.M., Patna
took cognizance against the accused persons including the
petitioner under section 498-A of the Indian Penal Code and
under section 3 and 4 of the Dowry Prohibition Act.
5. The learned counsel for the petitioner, at the
outset, has submitted that the informant is the wife of the
petitioner and has instituted the present case as a counter blast to
the Matrimonial Case No.63 of 2018, which was filed by the
petitioner on 27.02.2018 itself, whereas, the present F.I.R. came
to be registered on 17.03.2018.
6. Learned counsel for the petitioner has further
submitted that the informant is in habit of making frivolous
allegation against the petitioner and his family members and in
this regard, the petitioner had filed a representation dated
14.08.2017 to the Superintendent of Police, Katni, Madhya
Pradesh. He has further submitted that the informant along with
unknown persons on 05.02.2018 went to the house of the
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petitioner at Muzaffarpur and tried to set ablaze her matrimonial
house and for this incident an Informatory Petition dated
16.02.2018 has been filed before the Sub-Divisional Magistrate,
Muzaffarpur. Adverting to the aforesaid representation dated
14.08.2017 and the Informatory Petition dated 16.02.2018, it
has been submitted that the real fact is that the petitioner and his
family members are the real victim.
7. It has also been submitted by learned counsel
for the petitioner that the informant after quarreling with the
petitioner tried to harm herself with a view to implicate the
petitioner and his family members in a criminal case, which
compelled the petitioner to file a representation before the
Senior Superintendent of Police, Muzaffarpur on 12.03.2018.
8. It has categorically been submitted that
though in the F.I.R. allegation has been made by the informant
that the petitioner was having an extra marital affair with
another lady, but the real fact is that the informant was the one
having an illicit relationship with one Manish Kumar Pandey,
who, at the relevant time, was posed as Judicial Magistrate, 1st
Class, Aurangabad and the present informant had also lodged an
F.I.R. against said Manish Kumar Pandey vide Aurangabad
Nagar P.S. Case No.775 of 2022 dated 06.12.2022 wherein she
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had made allegation that the aforesaid Manish Kumar Pandey
had established sexual relationship with her on the pretext of
marriage. It is vehemently argued by learned counsel for the
petitioner that the informant, being the lawfully weeded wife of
the present petitioner, not only had an illicit relationship with
another person, but further from the reading of the aforesaid
F.I.R. vide Aurangabad Nagar P.S. Case No.775 of 2022, it is
apparent that the present informant had infact married the
aforesaid Manish Kumar Pandey.
9. Learned counsel for the petitioner has also
submitted that from the perusal of the F.I.R., it is evident that
only vague and bald allegations have been made against the
petitioner and as such, the prosecution stands vitiated on the
strength of the judgment of the Hon’ble Supreme Court in the
case of Pritam Ashok Sadabhule vs. the State of Maharasthra
& Ors. reported as (2015) 11 SCC 769.
10. Learned counsel for the petitioner has drawn
the attention of this Court to an order dated 28.08.2023 passed
by a Co-ordinate Bench of this Court in Criminal Miscellaneous
No.74859 of 2018 titled as ‘Anjana Rani @ Rubi Devi & Ors.
vs. State of Bihar & Anr., by which the impugned order of
cognizance dated 16.07.2018 has been quashed qua the
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petitioners therein, who were married sisters-in-law and the
brother-in-law of the informant. Lastly, it has been submitted by
learned counsel for the petitioner that criminal law cannot be
used as an instrument for settling the matrimonial dispute and to
extract vengeance. In support of this submission, learned
counsel for the petitioner has relied upon the decision of the
Hon’ble Supreme Court in the case of Dara Lakshmi Narayana
& Ors. vs. State of Telangana & Anr. reported as 2024 SCC
OnLine SC 3682.
11. By making the aforesaid submissions, it has
been submitted by learned counsel for the petitioner that the
impugned order of cognizance has been passed mechanically
without application of judicial mind and therefore, the same is
unsustainable in law.
12. A counter affidavit has been filed on behalf
of the opposite party no.2- informant wherein, at the outset, the
facts of the F.I.R. has been reiterated. It has been stated in the
counter affidavit that the parents of the opposite party no.2 had
transferred the dowry amount in the bank account of the family
members of the petitioner. It has also been stated that on
21.01.2018, the opposite party no.2 had submitted a Sanha
before the Senior Superintendent of Police, Patna, alleging
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torture at the hands of the petitioner and his family members,
which has been forwarded to the Mahila Police Station, Gandhi
Maidan, and notice was also issued to the petitioner. Thereafter,
on 23.02.2018, the opposite party no.2 had filed another Sanha
before the Senior Superintendent of Police, Muzaffarpur,
seeking protection and alleging that the petitioner did not want
to keep her at Katni, Madhya Pradesh and his family members
did not want to keep her at Muzaffarpur, and they used to
demand Rs.8,00,000/- as a condition to keep her in the
matrimonial house.
13. It has also been stated in the counter affidavit
that the opposite party no.2 had lodged two missing reports
concerning the petitioner, which were submitted to the Senior
Superintendent of Police, Muzaffarpur, on 26.02.2018, and the
Senior Superintendent of Police, Patna, on 05.03.2018
respectively. It has also been stated that the brother of the
petitioner had threatened the opposite party no.2 to withdraw the
present F.I.R. and in this regard, she had also filed a Sanha
before the concerned Police Station and thereafter, she filed
Informatory Petition No. 2536 of 2018 before the Chief Judicial
Magistrate, Patna, alleging that the petitioner and his family
members were threatening her and her family to withdraw the
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present F.I.R.
14. It has further been stated that on 28.08.2018,
the opposite party no.2 had also lodged an F.I.R. vide
Muzaffarpur P.S. Case No.640 of 2018 alleging that, while she
was returning from the Court, her brother in law Rajesh Kumar
and other persons stopped her car, assaulted her, snatched her
mangal sutra, and attempted to abduct her son. The opposite
party no.2 had also filed an application before the Town
Superintendent, Katni, Madhya Pradesh on 04.06.2022, wherein
she had asserted her status as the legally wedded wife of the
petitioner and sought permission to reside along with her son, in
the official residence allotted to the petitioner as the petitioner
was not allowing them to stay there and was living with another
woman.
15. Refuting the submissions made by the
petitioner regarding lodging of F.I.R. against one Manish Kumar
Pandey, it has been stated in paragraph nos. 18 to 22 as under:-
“18. That the petitioner filed one
supplementary affidavit in the case and
stated that the O. P.No. 2 solemnized her
marriage with Manish Kumar is a
misleading fact. The O. P. No. 2 never
got married with Manish Kumar Pandey.
Manish Kumar Pandey Committed rape
with her on the pretext of managing a job
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in Government hospital for which she
submitted an application before
Superintendent of Police, Aurangabad on
dated 08.03.2022. On the basis of the
above application, the superintendent of
police forwarded the matter to District
Judge, Aurangabad, who after proper
inquiry refer the matter before Hon'ble
Court and the Hon'ble Court after due
consideration directed the District Judge,
Aurangabad to inform S.P. Aurangabad
to take action as per law laid down by
Hon'ble Supreme Court in U.P. Judicial
Officer's Association vs. Union of India
and Others.
19. That after due sanction from District
Judge, Aurangabad a case was registered
as Aurangabad P.S. case no. 775 of 2022
Under Section 341, 323, 376, 493, 496,
379, 504, 506/34 of Indian Penal Code
and Section 3/4 of the Dowry Prohibition
Act.
20. That after proper investigation the
investigating officer submitted Charge
Sheet before chief judicial Magistrate,
Aurangabad against Manish Kumar
Pandey on 19.01.2024. After satisfaction,
the learned Chief Judicial Magistrate,
Aurangabad took Cognizance of Offence
U/S. 341, 323, 493, 495, 496, 498-A,
376, 504, 506/34 I.P.C against Manish
Kumar Pandey.
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21. That the Anticipatory Bail of Manish
Kumar was rejected by the District Court
and Hon'ble High Court, he was granted
bail by Hon'ble Supreme Court.
22. That the O.P No.2 also filed F.I.R against
the brother of Manish kumar Pandey
(Vikash Pandey), who used to send
vulgar massages, abused her and also
used to threaten her, which was
registered as Aurangabad P.S. Case No.
235 of 2022 for offences U/S. 307, 504,
506 of the Indian Penal Code and
Section 67(A) of I.T Act was registered.
Anticipatory Bail application of Vikash
Pandey has been rejected by the District
Judge as well from Hon'ble High Court.”
16. Lastly, it has been argued on behalf of the
opposite party no.2 that once the Police, after completing
investigation, has filed charge-sheet and once the learned
Magistrate after considering the materials on record has
proceeded to take cognizance, this Court may not interfere with
the impugned order taking cognizance and his family members
against the petitioner.
17. I have considered the submissions of the
parties and perused the F.I.R. including the order taking
cognizance.
18. From the reading of the F.I.R., it appears that
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the petitioner and the informant-opposite party no.2, got married
on 10.07.2016 and soon thereafter, marital discord between the
parties crept up, leading to filing of several representations/
petitions before different authorities. It also appears from the
F.I.R. that the informant was pursuing her B.D.S. course while
leaving in Patna and the petitioner was working in Ordnance
Factory at Katni, Madhya Pradesh. The crux of the allegation is
that the accused persons had demand dowry of Rs.8,00,000/-
from the informant in order to allow her to reside at the
matrimonial house and that the petitioner was engaged in an
extra marital affair with another lady. From reading of the
present F.I.R., it appears that no specific allegation has been
levelled against the petitioner and merely the name of the
petitioner and his family members have been incorporated in the
F.I.R. The Hon’ble Supreme Court in the case of Dara Lakshmi
Narayana (supra) has held that a mere reference to the names
of the family members in a criminal case arising out of
matrimonial dispute without any specific allegation indicating
there active involvement should be nipped in the bud.
19. Pertinently, the present petitioner, who was
posted at Ordnance Factory, Katni, Madhya Pradesh had filed a
Divorce Petition vide Matrimonial Case No.63 of 2018 which
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was filed on 27.02.2018. It is noted that the present F.I.R. came
to be registered on 17.03.2018 just after approximately three
weeks of filing of the Divorce Petition by the petitioner. The
fact that the present F.I.R. came to be lodged only after the
petitioner had filed a Divorce Petition together with the fact that
there is an absence of any specific allegation of torture being
meted out to the informant at the hands of the petitioner, lends
credence to the submission that the present F.I.R. has been
instituted by way of a counter blast to the Divorce Petition filed
by the petitioner.
20. Further, from reading of the F.I.R., it also
appears that the informant has made allegation against the
petitioner of having an illicit relationship with another woman
and therefore, the petitioner was not willing to keep the
informant with him at the place of his posting. However, in the
supplementary affidavit filed on behalf of the petitioner, it has
been brought on record that the informant had an illicit
relationship with one Manish Kumar Pandey, serving as Judicial
Magistrate and subsequently, she lodged an F.I.R. vide
Aurangabad Nagar P.S. Case No.775 of 2022 against the said
person, making allegation that the aforesaid person had
pretended to marry the informant on the allurement of securing
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a Government job and on that pretext, he had established sexual
relationship with her. The informant in her counter affidavit has
made a statement that she never got married to the aforesaid
Manish Kumar Pandey and that he had committed rape with her.
However, the existence of this F.I.R. has not been denied by the
informant. Moreover, in the F.I.R. vide Aurangabad Nagar P.S.
Case No.775 of 2022, it has been alleged by the informant that
she was staying with said Manish Kumar Pandey at his
Government quarter at Jamui where he was posted.
21. At this juncture, it would be apposite to refer
to the decision rendered by the Hon’ble Supreme Court in the
case of State of Haryana & Ors vs Ch. Bhajan Lal & Ors.
reported in AIR 1992 604, wherein it has held as under:-
“102. In the backdrop of the interpretation of
the various relevant provisions of the
Code under Chapter 14 and of the
principles of law enunciated by this
Court in a series of decisions relating to
the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent
abuse of the process of any court or
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otherwise to secure the ends of justice,
though it may not be possible to lay down
any precise, clearly defined and
sufficiently channelized and inflexible
guidelines or rigid formulae and to give
an exhaustive list of myriad kinds of
cases wherein such a power should be
exercised.
(1) Where the allegations made in the
first information report or the
complaint, even if they are taken
at the face value and accepted in
their entirety do not prima facie
constitute any offence or make out
a case again the accused.
(2) Where the allegations in the first
information report and other
materials, if any, accompanying
the F.I.R. do not disclose a
cognizable offence, justifying an
investigation by police officers
under Section 156(1) of the Code
except under an order of a
Magistrate within the purview of
Section 155(2) of the Code;
(3) Where the uncontroverted
allegations made in the FIR or
complaint and the evidence
collected in support of the same
do not disclose the commission of
any offence and make out a case
against the accused;
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(4) Where the allegations in the FIR
do not constitute a cognizable
offence but constitute only a non-
cognizable offence, no
investigation is permitted by a
police officer without an order of
a Magistrate as contemplated
under Section 155(2) of the Code;
(5) Where the allegations made in the
FIR or complaint are so absurd
and inherently improbable on the
basis of which no prudent person
can ever reach a just conclusion
that there is sufficient ground for
proceeding against the accused;
(6) Where there is an express legal
bar engrafted in any of the
provisions of the Code or the
concerned Act (under which a
criminal proceeding is instituted)
to the institution and continuance
of the proceedings and/or where
there is a specific provision in the
Code or the concerned Act,
providing efficacious redress for
the grievance of the aggrieved
party;
(7) Where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
ulterior motive for wreaking
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vengeance on the accused and
with a view to spite him due to
private and personal grudge.”
22. The Hon’ble Supreme Court in the case of
Punjab National Bank vs. Surendra Prasad Sinha reported in
AIR 1992 SC 1815 has held that judicial process should not be
an instrument of oppression or needless harassment.
Vindication of majesty of justice and maintenance of law and
order in the society are the prime objects of criminal justice but
it could not be the means to wreak personal vengeance.
23. It is a settled proposition of law that the
inherent powers of this Court under section 482 of the Cr.P.C.
(section 528 of the B.N.S.S.) are to be utilized sparingly and
cautiously. It is equally settled that the power must also be
exercised to do real and substantial justice.
24. Now, turning to the facts of the present case,
it appears that the present F.I.R. has been filed as a counter blast
to the Divorce Petition preferred by the petitioner-husband,
which is still pending in the Principal Judge, Family Court,
Patna. Moreover, there no specific allegation of torture meted
out to the informant at the hands of the petitioner. The criminal
prosecution arising out of matrimonial discord cannot be
permitted to continue where it is manifestly a product of
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bitterness, private vengeance or a counter blast to the
matrimonial proceedings, particularly when the allegations are
vague, omnibus and meant to rope in the entire family.
25. Further, a Co-ordinate Bench of this Court
vide order dated 28.08.2023 passed in Criminal Miscellaneous
No.74859 of 2018 titled as ‘Anjana Rani @ Rubi Devi & Ors.
vs. State of Bihar & Anr.’ had quashed the impugned order qua
the other family members of the petitioner.
26. This Court has also noted that the impugned
order taking cognizance is cryptic and non-speaking in nature
since no cogent material has been discussed, based on which,
the learned Magistrate has taken cognizance.
27. The Hon’ble Supreme Court in the case of
Pepsi Food Ltd. & Anr. vs. Special Judicial Magistrate & Ors.
reported in (1998) 5 SCC 749 has held as under:-
“28. Summoning of an accused in a criminal
case is a serious matter. Criminal law
cannot be set into motion as a matter of
course.It is not that the complainant has
to bring only two witnesses to support his
allegations in the complaint to have the
criminal law set into motion. The order
of the Magistrate summoning the accused
must reflect that he has applied his mind
to the facts of the case and the law
applicable thereto. He has to examine the
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nature of allegations made in the
complaint and the evidence both oral and
documentary in support thereof and
would that be sufficient for the
complainant to succeed in bringing
charge on to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before summoning of the accused. The
Magistrate has to carefully scrutinize the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any
offence is prima facie committed by all or
any of the accused.”
28. The Hon’ble Supreme Court in the case of
Delhi Race Club (1940) Ltd. & Ors. vs. State of U.P. & Anr.
reported in (2024) 10 SCC 690 has held as under:-
“30. The aforesaid aspect could be said to
have been completely lost sight of by the
High Court, while rejecting the
application filed by the appellant herein
under Section 482CrPC, seeking
quashing of the summoning order.
31. In Mehmood Ul Rehman v. Khazir
Mohammad Tunda [Mehmood Ul
Rehman v. Khazir Mohammad Tunda,
(2015) 12 SCC 420, this Court held thus:
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(SCC p. 430, para 22)
“22. … The satisfaction on the
ground for proceeding would
mean that the facts alleged in the
complaint would constitute an
offence, and when considered
along with the statements
recorded, would, prima facie,
make the accused answerable
before the court. … In other
words, the Magistrate is not to act
as a post office in taking
cognizance of each and every
complaint filed before him and
issue process as a matter of
course. There must be sufficient
indication in the order passed by
the Magistrate that he is satisfied
that the allegations in the
complaint constitute an offence
and when considered along with
the statements recorded and the
result of inquiry or report of
investigation under Section 202
CrPC, if any, the accused is
answerable before the criminal
court, there is ground for
proceeding against the accused
under Section 204 CrPC, by
issuing process for appearance.
Application of mind is best
demonstrated by disclosure of
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mind on the satisfaction. … To be
called to appear before the
criminal court as an accused is
serious matter affecting one's
dignity, self-respect and image in
society. Hence, the process of
criminal court shall not be made a
weapon of harassment.”
(emphasis supplied)
32. The principle of law discernible from the
aforesaid decision is that issuance of
summons is a serious matter and,
therefore, should not be done
mechanically and it should be done only
upon satisfaction on the ground for
proceeding further in the matter against
a person concerned based on the
materials collected during the inquiry.”
29. Considering aforesaid discussions and also
the law laid down by the Hon’ble Supreme Court in the afore-
quoted decisions, this Court is of the view that the present F.I.R.
has maliciously been instituted against the petitioner, who is the
husband of the informant, with an ulterior motive for wreaking
vengeance and with a view to spite him due to private and
personal grudge. Therefore, the petitioner cannot be subjected to
the rigors of criminal trial at the hands of the informant based on
personal grudge arising out of marital discord since that would
be an abuse of the process of the Court.
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30. Accordingly, this application is allowed.
Consequently, the impugned order taking cognizance dated
16.07.2018 passed by the learned Additional Chief Judicial
Magistrate, Patna and all consequential proceedings arising
therefrom is hereby quashed qua the petitioner.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 03.02.2026
Uploading Date 01.05.2026
Transmission Date 01.05.2026
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